Robert Thomas: The New Immigration Rules and the Right to Family life

In June 2012, Theresa May, the Home Secretary, laid a new statement of changes in immigration rules before Parliament. There is nothing necessarily extraordinary in that; the immigration rules set out the criteria governing the entry into and removal from the UK of foreign nationals and they are frequently amended – as a previous blog by Carol Harlow has noted – to reflect changes in immigration policy.

However, there is something quite distinctive and significant about the June 2012 rules – HC 194 – namely, they seek to prescribe how judicial bodies are to interpret and apply the right to family life under Article 8 ECHR in immigration cases. The government’s aim is, essentially, to reduce the scope for foreign nationals to avoid removal from the UK on the basis that this would breach their right to family life. The machinery for administering immigration policy has been repeatedly been criticised for not being fit for purpose and also for allowing foreign nationals without any right to remain in the UK under ordinary immigration categories to use Article 8. One particularly high-profile issue has been the use of Article 8 by foreign national prisoners, which has been highlighted by the Daily Telegraph in its “End the Human Rights Farce” campaign. Furthermore, the Coalition Government’s general policy is to reduce inward migration.

The new immigration rules raise a number of issues: (i) what exactly is being proposed and how? (ii) what Parliamentary process has been used? and (iii) how might the courts respond to the new rules?

What is being done and how?

Article 8 is a qualified right and any interference is permissible only so long as it is proportionate and justifiable. In the immigration context, Article 8 has assumed a distinctive role as it is frequently relied upon by foreign nationals who challenge their removal. These challenges have generated an enormous volume of case-law on the legal test to be applied as regards the balance to be struck between family life on the one hand and immigration policy on the other. But, to summarise, the key issue is this: should the courts accept that in most cases the balance between family life and immigration control has been laid down in the Immigration Rules – or should decision-makers themselves determine in each individual case where the proportionate balance lies?

In Huang, the Court of Appeal held that the Immigration Rules represented the appropriate balance between public policy and private right: individuals who did not qualify under the ordinary immigration rules would only succeed under Article 8 grounds if their case was truly exceptional. However, when the same case went to the House of Lords, it held that there was no test of exceptionality: the ultimate question is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. There was, the House of Lords held, no reason to defer to the Immigration Rules which “are not the product of active debate in Parliament, where non-nationals seeking leave to enter or remain are not in any event represented.”

Following Huang, then, it was for the decision-maker – whether initially a caseworker at the UK Border Agency, an immigration judge on appeal, or a court judge by way of further appeal – to make her own assessment as to whether or not removal would breach an individual’s right to family and private life. This test has been accepted and applied since 2007. However, the loss of control here has evidently been too much for the Coalition Government to bear – especially when under acute media and political pressure to respond to public concern – real or otherwise – on immigration.

The rationale for the new rules, therefore, commences by way of critique. According to the Home Office, the Huang approach has resulted in unpredictable and inconsistent decision-making which are anathema to good administration (seasoned observers of the behaviour, action, and inaction of the UK Border Agency and its predecessors may relish the irony here: see, for instance, a special report of the Parliamentary Ombudsmen and multiple reports by the House of Commons Home Affairs Committee on the UKBA’s handling of immigration applications). It has also meant that the courts do not defer to Parliament’s or the Government’s view of where the appropriate balance lies between family life and immigration control. Consequently, the solution – so the Government says – is to introduce new Immigration Rules to do two things: (i) to specify where the balance is to lie, that is, adopt a rules-based approach to proportionality; and (ii) to do so in a way which ensures that the new Rules have democratic legitimacy and should therefore only be subject to a light-touch judicial review.

How do the new Rules attempt to do this? By specifying the criteria to be applied in family life cases. For instance, in foreign national prisoner deportation cases, the new rules state that family or private life (including the best interests of any child, even though always a primary consideration) will not outweigh the public interest in seeing the person deported where they have received a custodial sentence of at least 4 years unless there are exceptional circumstances. This rule allows little scope for a Huang-style general balancing exercise; the main issue under the new rule is whether or not there are “exceptional circumstances”, ie a return to the position reached by the Court of Appeal in Huang.

For those foreign national prisoners with a custodial sentence of between one and four years, the new rules introduce different requirements. Deportation will be proportionate unless they have a genuine and subsisting relationship with a partner in the UK and they have lived in the UK with valid leave continuously for at least the last 15 years and there are insurmountable obstacles to family life with that partner continuing overseas; or they have a genuine and subsisting parental relationship with a British citizen child, or a foreign national child who has lived in the UK continuously for at least the last seven years immediately and it would be unreasonable to expect the child to leave the UK and there is no other family member who is able to care for the child in the UK. Alternatively, they might have lived continuously in the UK for at least the last 20 years and they have no ties (including social, cultural or family) with their home country; or they are under 25 years, have spent at least half of their life living continuously in the UK and have no ties or there are exceptional circumstances.

There are similarly complex and lengthy rules concerning the tests to be applied to other categories of person other than foreign national prisoners, such as cases concerning children and those individuals who seek to remain by virtue of their long residence in the UK. Putting the detailed rules to one side, thee general thrust is to limit and confine discretion and for the Government to give a clear policy steer to the courts as to how they should interpret Article 8. What the Government intends is for the focus of the courts to shift away from assessing the proportionality in each individual case to assessing the proportionality of the Rules themselves. As the rule embody the proportionality assessment at a general level, it is not necessary – the Home Office says – to re-determine it in every individual case.

What Parliamentary process has been used?

A key aspect of the Government’s plan has been to circumvent the concern expressed by the House of Lords in Huang – that the Immigration Rules are not the product of active debate in Parliament. The new rules were debated and approved by the House of Commons.

Or were they? What actually happened on 19 June 2012 is that the Commons debated and approved a Government motion that Article 8 is a qualified right and that the criteria governing immigration are laid down in the Immigration Rules. So much is obvious to anyone with a passing acquaintance with the issues. However, some MPs at the time and, later the House of Lords Scrutiny of Secondary Legislation Committee, queried the relevance and consequences of the June debate. The Home Office’s inconsistent use of the term “Immigration Rules” caused considerable confusion throughout the Commons’ debate. One MP, for example, asked which Rules they were being asked to endorse – the ones current on 19 June or the new version of the rules as amended by HC 194 which would come into effect on 9 July 2012 (HC Deb col 806)).

The Scrutiny Committee has doubted whether procedurally the debate delivered a sufficiently clear endorsement of the wider policy to assist the courts. Although it was the Home Office’s firm intention to provide the courts with a clear policy steer on the weight to be given to Article 8 of ECHR in relation to the Immigration Rules, it was equivocal about the procedural approach for delivering it. According to the Scrutiny Committee, while the Home Secretary’s intention is clear, questions remain about whether the Government’s approach can deliver it: the Home Office provided no evidence to support its view that the procedural approach it proposes will lead the courts to react in the way the Home Office anticipates.

Putting the formal motion to one side, the purpose of the June debate was all about sending a clear message to the courts: apply the new rules or else risk defying the Government. As Theresa May stated:

“the immigration rules will no longer be a mere starting point, with leave granted outside the rules or appeals allowed under article 8 for those who do not meet them. The immigration rules will instead take into account article 8, relevant case law and appropriate evidence and they will be proposed by the Executive and approved by the legislature. Of course, the courts have a clear constitutional role in reviewing the proportionality of measures passed by Parliament, but now the focus of the courts should be on considering the proportionality of the rules rather than the proportionality of every individual application determined in accordance with the rules. Where the courts consider individual deportation decisions, it should now be with consideration of Parliament’s public policy intent firmly in mind.” (col 763)

The Government would no doubt have been confident that it would face few problems in the Commons on the substantive issue of confining family life for, amongst others, foreign national prisoners: only a few brave MPs would take issue with that. The Labour party’s line was that the message being sent to the courts was not strong enough because the policy was only being introduced through the Immigration Rules and not through primary legislation (col 774).

How, then, might the courts respond?

It is clear that the new rules will, before long, be challenged in the courts. This might initially take a little while. A case may first be determined by the Upper Tribunal (Immigration and Asylum Chamber), then by the Court of Appeal, the Supreme Court, and perhaps ultimately Strasbourg. The Home Office, though, seems ready for it. Along with the new rules, it published a detailed statement of ECHR compatibility which, unsurprisingly, concluded that the new rules are compatible with Article 8 ECHR.

What then of the courts? Since Huang, the Supreme Court has, in a number of cases, emphasized that the fact-sensitive and judgmental nature of the proportionality assessment in immigration cases cannot be constrained by rules. In EB (Kosovo), Lord Bingham stated:

“the … [tribunal] … must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”

In another Article 8 case decided at the same time as EB (Kosovo) – Chikwamba – Lord Scott put it more succinctly:

“policies that involve people cannot be, and should not be allowed to become, rigid inflexible rules. The bureaucracy of which Kafka wrote cannot be allowed to take root in this country and the courts must see that it does not.”

The problem with the new rules is that there will always be cases that fall on the wrong side of the rigid requirements laid down, but which a court or tribunal may nonetheless conclude deserve to be allowed because of the strength of countervailing factors. It is generally recognised in administrative law that when the decision task at hand is particularly important – when the error costs of incorrect decisions are particularly high – then flexibility and discretion are to be preferred to rigid rules which are over-inclusive. Also, a flexible standard as applied by a court or tribunal enables affected individuals to participate directly in the decision-making process. But, these factors have to be weighed against political forces pushing in the opposite direction.

There are a number of options for the courts. First, the courts could simply accept the new rules and apply them by recognising them as the Government’s clear wish as approved by the House of Commons. This supine posture, however, seems unlikely. The Immigration Rules are subordinate legislation and not in any way immune from judicial scrutiny. Even if the courts recognise the need for some deference, the importance of Article 8 is a major countervailing force. As the House of Lords noted in Huang:

“Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”

Secondly, the courts could go the other extreme and strike down the relevant immigration rules as incompatible with Article 8 as interpreted by the House of Lords in Huang. This is possible – if, for instance, the courts find that the rules so restrict the proportionality assessment that they do not comprise a valid interpretation of the case-law. Judicial invalidation of the Immigration Rules is rare, but not unknown. A determined Government could in response do two things: (i) change the rules on each occasion to accommodate the flexibility required by the courts; or (ii) introduce primary legislation, but that would take up valuable legislative time.

Thirdly, the courts could take a middle path by interpreting the Rules against the general background of the Human Rights Act and hold that the new rules do not absolve the courts from applying Article 8 under the HRA. After all, what is the legal status of formal secondary rules which seek to lay down the executive’s interpretation as to how independent courts ought to assess the proportionality of decisions that infringe a qualified ECHR right? The courts could conclude that, in the human rights context, the rules are to be treated as more akin to administrative guidance – a set of relevant considerations no doubt, but not formally binding because of overarching ECHR standards.

The scene is, then, set for a showdown – sometime in 2013-14 I would guess. It is almost as if the Government has drawn a line in the sand and has now dared the courts to cross it. Picking an argument with the courts has, of course, long been the stock-in-trade of Home Secretaries when the normally hard-grind of government gets even tougher; former Home Secretaries such as Michael Howard and David Blunkett both had their run-ins with the courts. A cynical observer might suggest that lying beneath all the formal surface issues of the rules, Parliamentary procedure, case-law, and so on, the Government has been in search of a future blame-avoidance strategy. If the courts accept the rules, then fine, but they are rejected, then the Government can always throw any political come-back into the courts’ direction. As Baroness Hale noted in Walumba Lumba, “[t]hese are just the sort of circumstances, where both Ministers and their civil servants are under pressure to do what they may know to be wrong, in which the courts must be vigilant to ensure that their decisions are taken in accordance with the law. To borrow from the civil servants’ correspondence, the courts must be prepared to take the hit even if they are not.”

Robert Thomas is Professor of Public Law at the School of Law, University of Manchester

Suggested citation: R. Thomas, ‘The New Immigration Rules and the Right to Family Life’ UK Const. L. Blog (4th October 2012) (available at http://ukconstitutionallaw.org